If Canadian refugee policy is to serve interests of Canadians as
well as those of genuine refugees in an effective manner, far more
radical changes will be needed than have been attempted to date. They
must include the introduction of robust safe third country designations,
a review of the 1985 Singh decision of the Supreme Court of Canada, and
possible withdrawal by Canada of its accession to the 1951 UN Refugee
Convention. Other measures should also be considered such as placing an
annual limit on the intake of refugees from overseas combined with that
of successful incountry asylum seekers as well as establishing provision
for temporary refugee status in Canada in addition to permanent
resettlement. Measures should be taken to return Canada to its role
primarily as a resettlement country for refugees selected abroad and hOt
one that accommodates large numbers of asylum seekers making claims on
out territory. With strong public backing for major changes, political
parties that oppose such reforms will do so at the risk of losing
electoral support.

The year 2010 saw major activity on the part of the Government of
Canada in terms of presenting legislation designed to deal with
perceived shortcomings of the refugee determination system. Early in the
year a bill was tabled in Parliament to address sharp rises in refugee
claims by nationals of countries that would not normally be considered
as refugee-producing. In the years preceding the tabling of the bill
there had been concern over the large number of claims by asylum seekers
from the Czech Republic and Mexico. q-he case ruade by refugee claimants
from Mexico was usually that they were fleeing violence precipitated by
drug cartels, while the Czechs were from the Roma (Gypsy) minority and
cited the widespread discrimination they encountered in their homeland.

While both groups of claimants had reason to believe they would be
better off in Canada, the Government did not consider that the reasons
they advanced in support of their applications for protection
constituted convincing cases of persecution as required by the 1951
United Nations Convention relating to the Status of Refugees. With
regard to Mexican daimants, fleeing criminal violence was not regarded
as being equivalent to suffering from persecution as stipulated by the
Convention, and if this kind of problem were accepted as grounds for
being granted asylum, there were undoubtedly millions more around the
world entitled to come here as refugees.

As for the Roma from the Czech Republic, suffering from
discrimination was not considered equivalent to government persecution.
It did not help their case that Roma from the Czech Republic were free
to travel to any other member country of the European Union, none of
which would consider a refugee claim from a Czech citizen.

An indication of the extent to which Canada was out of line with
other countries in considering claims from the nationals of these two
nations is that according to UNHCR statistics no other nation granted
refugee status to a Czech in 2008 and only Canada and the United States
did so in the case of Mexicans--with Canada accepting far more than the
US. (1)

Efforts to Make the Refugee Determination System More Efficient

The Government accordingly tabled legislation designed to deal with
large increases in arrivals of asylum seekers as well as measures to
introduce more efficiency and fairness to what is widely regarded as a
largely dysfunctional refugee determination system. "The bill
presented to Parliament was aimed at speeding up the processing and
disposition of both applications that appeared to have little merit as
well as those that were well-founded and stood a good chance of being
approved.

A specific objective of the legislation was to deny the opportunity
for in-Canada appeals to claimants from nonrefugee producing countries.
The purpose of this was to avoid situations where such unsuccessful
claimants could remain here while their appeals wound their way through
the system and thereby increase their chances of remaining here
indefinitely by one means or another. Other countries, such as the
United Kingdom, require that appeals from such refused claimants be
pursued from abroad if they wish to do so in order that they don't
gain advantage from prolonging their stay in Britain.

Included in the legislation package was the creation of a Refugee
Appeal Division (RAD) of the Immigration and Refugee Board (IRB), a unit
that had been provided for in the 2001 Immigration and Refugee
Protection Act (IRPA). Successive Liberal and Conservative immigration
ministers had refused, however, to implement this section of the Act
since in their estimation there were already too many opportunities for
refugee claimants turned down by the IRB to have their cases appealed or
reviewed. Until this was sorted out, it was viewed as unwise to add yet
another level of appeal. (2)

In consequence, in the bill presented in early 2010, the Government
included provision for the establishment of the RAD in combination with
changes to the system that would consolidate the existing opportunities
to have failed cases appealed and reviewed. If all the elements of the
bill were approved, it was, therefore, expected to bring about an
overall improvement of the system in terms of efficiency and timely
disposition of claims.

In the event, however, refugee lawyers and activists as well as
members of opposition parties in Parliament were successful in retaining
inclusion of the RAD while diluting other parts of the legislation. It
remains to be seen, in the circumstances, whether the Balanced Refuge
Reform Act passed in ]une will be an improvement on the current system.
Immigration expert James Bissett, for one, believes it likely that the
provisions of the new legislation will create even more backlogs. (3)

Arrival of the Sun Sea

Later in 2010 the Government again tried to introduce reforms with
the tabling of a bill designed to curb human smuggling following the
arrival of a boatload of 492 Tamil asylum seekers in August on a vessel
named the Sun Sea. While Canadian authorities had known for weeks that
the Sun Sea was headed in this direction from Asia, the Government felt
it had no choice but to allow it to land in Canada and permit those on
board to claim refugee status. Its arrival raised questions about the
extent to which we are able to control who enters our territory and, by
implication, the degree to which we are able to protect out sovereignty.

Public Opinion Supports Strong Measures to Prevent Human Smuggling

Public opinion is clearly in support of taking a firm line on how
we should deal with such incidents. A Leger Marketing poll (4) released
after the arriva1 of the Sun Sea round that 60 per cent of those
surveyed thought the ship and its passengers should be turned away and
escorted back to Sri Lanka by the Canadian Navy. According to an Angus
Reid polls taken at about the same time, almost half of those surveyed
felt that, even if the refugee claims of those who arrived on the Sun
Sea were round to be legitimate and no links were made between them and
any terrorist organization, the ship's crew and passengers should
still be sent back to Sri Lanka. While it should not be concluded from
this that Canadians are unsympathetic towards the plight of refugees in
general, these survey results clearly reflect a high level of
frustration on the part of Canadians with regard to what they perceive
as abuse of the system.

There is fairly broad agreement among political parties that the
bill should provide heavy fines and sentences for those who organize the
voyages as well as major penalties for the owners and operators of the
ships involved. The sections being challenged by opposition parties in
Parliament are those aimed at deterring asylum seekers themselves from
using the services of human smugglers to get to Canada.

The bill if approved by Parliament would stipulate that asylum
seekers who reach Canadian shores in such mass arrivals would be
detained for up to a year in order to determine their identity,
admissibility, and whether they were involved in illegal activity. They
would, furthermore, be barred from applying for permanent resident
status for five years even if they were granted refugee status, and
would not be able to sponsor family members for five years. In addition
they would lose their status if they went back for visits to the country
from which they sought refuge or if the situation there improved to the
point where it was safe for them to return.

Notwithstanding the strong indications noted above that public
opinion supports a firm stance on refugee claimants using human
smugglers to enter Canada, refugee advocates and opposition members in
Parliament have taken the position that the asylum seekers should be
considered as victims of the human smugglers. They should not be
considered as complicit in a criminal operation given that they may have
had no other means of reaching Canada to make a refugee claim. In the
view of refugee advocates, the bill would, moreover, create a two-tier
system in which asylum seekers arriving as part of a "designated
human smuggling event" are treated unfairly in comparison with
those who get here by others means and are, therefore, not subject to
such harsh rules.

While there is some merit in the claim that asylum seekers using
human smugglers to get here will be treated more sternly than those who
don't, it is not unreasonable to ask whether some of the tougher
rules should not be applied to refugee claimants in general. It is
difficult to see, for example, why any asylum seeker should be able to
pursue their claim if they have no problem with going back to visit the
countries from which they said they had to flee. (6) The Government, in
fact, has the legal right to terminate its obligation not to refoule in
such cases through "cessation"--although it rarely applies
this provision.

Need to Establish Temporary Status for Refugees in Canada

In like manner, there would seem to be good reason for requiring
that all asylum seekers should be prepared to return to their countries
of origin if the situation there improves within a reasonable period of
time and they are no longer at risk if they go back. In 1999, for
example, Canada along with other Western countries accepted thousands of
Kosovars as refugees on the basis that they were considered in danger
from Serbian armed forces in Kosovo. Later the same year an agreement
was reached for the withdrawal of Serbian troops and the introduction of
UN peacekeepers to maintain security and, in consequence, by June of
2000 more than 800,000 Kosovars who had gone to other countries to flee
the violence had returned home.

Most Western countries encouraged those on their territory to do so
and in some instances put pressure on them to this end. In the case of
Australia, for example, 95 per cent of the 4,000 Kosovars who had been
admitted as refugees returned home. Canada, however, has no provision
for granting temporary status for refugees and a large majority of
Kosovars in this country chose to stay (7)--which should hardly come as
a surprise considering the much better social services and economic
prospects available to them here than in Kosovo.

In the circumstances, there is a strong case for creating temporary
protection status for refugees fleeing from areas where the situation is
evolving and may improve in the foreseeable future to the extent that
they can safely return. Other countries have such provisions and there
is no reason why Canada should not.

As for the proposed legislation, even if it were approved by
Parliament without major changes, it would be unlikely to reduce
substantially the very large number of individuals making refugee claims
in Canada. Relatively few, in fact, reach our soil in mass arrivals such
as we saw in the case of the Sun Sea; most come individually or in small
numbers and usually by air.

In addition, some asylum seekers have no need to employ human
smugglers to enter Canada. Actor Randy Quaid and his wife, for example,
as American citizens were simply able to cross the border legally from
the United States in order to be able to claim refugee status--which
they said they required because they were in danger from Hollywood
"star whackers" and had been persecuted by American
authorities for the past twenty years.

Canada Should Concentrate on Being a Country of Resettlement--Not
of First Asylum

This leads to the question of whether Canada simply makes it too
easy to make a refugee claim on our territory. In this respect, it is
useful to recall that when Canada began accepting refugees in the wake
of World War II it did not see itself as a country of first asylum but
rather as one that could make a contribution by resettling those who had
sought refuge in other countries. Accordingly, we took in 186,000
displaced persons from Europe in the years following the war as well as
significant numbers after the Hungarian revolution in 1956 and the
uprising in Czechoslovakia in 1968. We continued with this tradition in
the case of Asians fleeing Uganda and Chileans in the early 1970s as
well as with Indochinese boat people later in the decade.

The UN Refugee Convention Is Out of Date

We did not expect to become a significant country of first asylum
since our geographic location made it unlikely that we would be the
first available country of refuge for someone fleeing a regime that had
been persecuting them. "We nevertheless had doubts about whether
the provisions of the 1951 Convention would provide suitable terms of
reference for Canadian refugee policy and did not, in the event, accede
to it until 1969--by which time Canada had become so firmly committed to
multilateral solutions to international problems that we round it
increasingly difficult not to sign on.

As events were to show, our reservations about acceding to the
Convention turned out to be justified. Article 33 stipulated that
contracting states could not engage in "refoulement," i.e.
expelling or returning refugees to territories where their life or
freedom would be threatened on account of their race, religion,
nationality, membership of a particular social group or political
opinion. This article of the Convention was designed to protect
individuals who were fleeing across borders from repressive regimes from
being forced back to where they came from-individuals, in effect, whose
only chance to reach freedom was to take the route they did. Since
Canada had no common borders with countries that persecuted its
citizens, it did not seem likely that this provision would come into
play very often in our case.

It did so only occasionally as, for example, during the Cold War
when the Aeroflot flight from Moscow to Havana stopped in Gander,
Newfoundland, to refuel, and passengers from Communist countries
sometimes took the opportunity to claim refugee status in Canada. The
prospect of large numbers being able to claim asylum in Canada under
this provision, however, seemed remote. Most international flights into
Canada departed from democratic countries where asylum seekers could
apply for refugee status and where they were expected to do so according
to generally accepted international rules. To continue on to make a
claim somewhere else is considered "asylum shopping" because
it involves trying to get to the countries that offer the most generous
benefits. Such action indicates that the individual is more concerned
about getting to a place where they can enjoy a better life than they
are about reaching safety since they chose not to make a claim in the
first safe country they managed to reach.

Use of Human Smugglers by Asylum Seekers

In recent decades, nevertheless, asylum seekers have increasingly
made use of the section of the Convention that makes it possible to
claim refugee status on our territory and human smugglers have been
active in facilitating their movement. According to the RCMP, between
1997 and 2002, smugglers assisted almost 12 per cent of the 14,792
improperly documented migrants who were intercepted in Canada or en
route. (8) This presumably referred to cases that had been clearly
identified as involving human smugglers and the real percentage may be
much higher. One RCMP officer as well as some immigration department
officials reportedly estimated that as many as 90 per cent of refugee
claimants accepted by Canada between 1983 and 1995 got here with the
assistance of human smugglers. (9)

One reason why the use of smugglers has become so widespread is
very likely the fact that migrants attempting to enter countries without
the proper authorization have had to resort to professional help to get
around the increasingly sophisticated control measures of governments.
The imposition of visitor visas, introduction of documents that are
difficult to counterfeit, and presence of control officers at airports
have reduced the ability of amateurs to bypass controls and, thereby,
increased the use of human smugglers with more professional skills and
knowledge.

Canada's popularity as a destination for asylum seekers is
borne out by the number of claims made in this country compared to those
made elsewhere. In recent years, for example, Canada has had by far the
largest number of asylum claims among the G8 major industrialized
nations on a per capita basis even though we are the most difficult to
reach because of our geographic location. (10)

Our popularity is due to a combination of factors that include our
high rates of acceptance, our readiness to consider claims from citizens
of any country in the world, our generous package of benefits, and the
prospect that, even if one's claim is turned down, the appeals and
reviews available make it possible to stay in Canada for years and even
decades, with a very good chance of never being made to leave.

The Charter of Rights and the Singh Decision

The long process often involved in arriving at the final
disposition of a claim has been complicated in particular by a decision
of the Supreme Court in 1985 (known as the Singh decision) that allowed
refugee claimants to receive the full benefit of Section 7 of the
Canadian Charter of Rights and Freedoms. Section 7 states,
"Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice."

"This decision has played a major role in making it very
difficult for our refugee determination system to deal expeditiously
with the large volume of people who make refugee claims in Canada. A
former deputy minister of immigration, John L. Manion, warned when the
Charter was still in draft that Section 7 should apply only to Canadian
citizens (or at least those with legal resident status in Canada) rather
than to "everyone," as otherwise it would grant rights to
foreigners that would allow them to bypass or frustrate our immigration
laws. (11)

As it turned out, Manion's advice was ignored and the use of
the term "everyone" in this section of the Charter made
possible the 1985 decision which, in his words, "destroyed any real
immigration control, and made Canada the laughing stock of the world,
and the destination of too many footloose criminals, terrorists and
social parasites." In terms of the number of applications, it is
worth noting that in the six years prior to the Singh decision, 42,000
made refugee claims in Canada, while in the six years following the
decision this number had ballooned to over 200,000, with close to three
quarters of a million being made since 1985. While this matched to a
considerable degree increases in the number of claims made in other
Western countries, the Singh decision limited the scope of the
Government's response and made Canada a more attractive destination
for asylum shoppers.

In a letter written in 1999 to the then minister of citizenship and
immigration, Manion recommended that the Government use the
"notwithstanding" clause of the Charter to address the
problems created by the Singh decision in terms of extending Charter
rights to anyone seeking to remain in Canada. In Manion's judgment,
as a sovereign country, Canada must be in a position to make summary
decisions in cases of those who have no legal connection to this
country, as virtually every other country in the world does.

Manion, however, was not sanguine about the likelihood of the
Government invoking the "notwithstanding" clause for this
purpose and, therefore, proposed at the very least that Canada formally
cancel its accession to the UN Convention. In his view, Canada was very
generous in the way it dealt with people fleeing from persecution in
repressive countries and should continue with this tradition. By the
same token, we should not be subject to international rules that were no
longer relevant to current realities and should be free to develop our
own policies for dealing with such situations as we saw fit.

Criticism of the Refugee Convention

Manion has not been alone in criticizing the Convention. In 2001,
British Home Secretary Jack Straw called for the redrafting of
international refugee rules because "people traffickers" were
effectively deciding who was coming to Britain and claiming refugee
status. In 2000, Australian Immigration Minister Phillip Ruddock warned
that the 1951 Convention was out of date and being manipulated by people
who were not genuine refugees. A paper prepared by the Australian
Parliamentary Library provides one of the most comprehensive critiques
of the Convention, noting that is "anachronistic" and
"developed in and for a different era." It observes,
"While Western countries' asylum systems might have coped well
enough until the end of the Cold War, they were not designed with
today's mass refugee outflows and migratory movements in
mind." Former British Prime Minister Tony Blair made similar
observations in his memoirs published in September, 2009. In
Blair's view, the Convention, written in response to the horrors of
World War II, had helped create a system that was completely unrealistic
in today's world and utterly incapable of dealing with the massive
number of asylum claims now being made. (12)

It is clear that provisions of the 1951 Convention are ill-suited
to the realities of today's world. While the Convention drafters
envisaged relatively small numbers of people fleeing across borders from
countries that were persecuting them and were seeking sanctuary in the
first sale country they could reach, we now are faced with having tens
of thousands of people travelling great distances to reach the country
that will give them the greatest benefits. In doing so, many if not most
pass through or bypass other countries where they could have sought
asylum. In a great many cases they do so with the aid of human
smugglers.

Ideally, countries that accept refugees for permanent resettlement
could together produce a new convention based on today's realities.
Reaching agreement on what should be included would almost certainly
prove to be difficult, however, because of the legal frameworks for
dealing with asylum seekers that have developed over the years in
various countries as well as because of the influential domestic refugee
advocacy lobbies that argue for ever more generous provisions for asylum
seekers.

Canada Should Consider Withdrawing from the Refugee Convention

In the circumstances, it would be much more realistic for Canada to
withdraw its accession to the UN Convention and create its own framework
for dealing with asylum seekers. It could seek to do this in concert
with other countries such as Australia that regard themselves primarily
as countries of resettlement for refugees rather than of first asylum.

There is no question that were the Government to embark on such a
course of action it would face strident opposition from a range of
groups that have to date been able to play a major role in determining
our policy towards asylum refugee claimants. These include immigration
lawyers who have built careers around representing clients who are
asylum seekers as well as organizations such as the Canadian Council for
Refugees and Amnesty International. All frequently remind us that we
have no choice but to let virtually anyone who wishes to do so come to
Canada and have their refugee claims heard because of our
"international obligations" quite apart from the impact the
Charter has had on the refugee determination system because of the Singh
decision.

In addition to the problems created by the wording of the Charter
that made possible the Singh decision and the outdated UN Convention, a
particularly serious impediment to the creation of a workable and fair
refugee determination system in Canada is our failure to make adequate
use of safe third country (13) provisions in determining who may make
refugee claims in Canada.

The Need to Apply the Safe Third Country Principle More Robustly

The safe third country concept is based on the principle that, if
someone flees their country of origin, they should seek sanctuary in the
first safe country they are able to reach. If, however, they choose to
more on to somewhere else to seek asylum, it indicates that their
primary concern was hOt to reach safety but rather to be allowed to seek
asylum and remain permanently in countries where there are generous
benefits, high rates of acceptance, etc. In this regard they are
considered to be "asylum shoppers."

When the legislation creating the Immigration and Refugee Board was
drafted in the late 1980s it was fully intended that that a list of sale
third countries would be established in order that Canada not be
inundated with asylum shoppers and so that the refugee determination
system would be able to process both expeditiously and thoroughly a
relatively limited number of claims. In the event, the refugee lobby was
sufficiently influential that it was able to convince the then minister
of immigration that no other country in the world but Canada was safe
for asylum seekers and none should, therefore, be designated as safe
third countries (James Bissett has described in some detail how this
came about (14)).

Since these events took place, Canada has concluded a Sale Third
Country Agreement (STCA) with the United States under which asylum
seekers must seek protection in the first of the two countries where
they have an opportunity to do so, rather than, as in the past, being
able to go to the mutual border and apply for refugee status in the
other country. While this has led to complaints from refugee activists
who argue that the United States is far too parsimonious (15) when it
comes to granting asylum, significant numbers of refugee claimants are
still able to enter Canada at the US border if they qualify under one of
the exceptions to the agreement.

Very clearly a key element in our being able to keep access to the
refugee determination system to a manageable level is we must make more
extensive use of the sale third country principle as do other Western
countries. It makes no sense for us to cater to asylum shoppers who have
arrived here via Britain, France, or other democratic countries that
have good human rights records. This does not mean that some of them may
not have a good case for claiming refugee status or that they should be
prevented from making claims but simply that they must return to the
safe country they travelled through en route to Canada to make their
claims.

The Immigration and Refugee Protection Act stipulates that one of
the factors to be considered in designating a country as a safe third is
whether it is party to an agreement with Canada for the purpose of
sharing responsibility with respect to claims for refugee protection.
Since IRPA only states that such an agreement will be a
"consideration" rather than a mandatory requirement, we should
be able to designate appropriate countries as safe thirds without having
to seek their concurrence. Should it be determined that the wording of
IRPA means that having an agreement with another state is mandatory
before it can be designated as a safe third, the legislation should be
amended to remove such a requirement. We should also review the
exceptions to the STCA with the United States since some of these are of
questionable merit and should be eliminated.

The Refugee Determination System Requires a Complete Overhaul

The foregoing proposals do not constitute a comprehensive list of
the measures needed to correct a refugee system that has become highly
dysfunctional over the years. In a paper published recently by the
Frontier Centre for Public Policy, former Canadian ambassador and
executive director of the Canadian Immigration Service, James Bissett,
makes the point that half measures will not work and fundamental changes
have to be put in place. (16) The same message was conveyed in the
Auditor General's report in 1997 that detailed a wide range of
problems with the system and cautioning against attempts at patchwork
modifications. (17) There has, in the event, been little improvement
since the report was released.

One of the most important changes that must be made to the system
is to put in place measures that will discourage individuals from making
refugee claims in Canada if they have an opportunity to seek asylum in
other safe countries or else apply from abroad to come here as refugees.
We would then once again be able to concentrate our efforts on
resettling refugees from overseas. We do, after all, resettle more than
10,000 a year who apply from overseas and there are currently 42,000
waiting patiently in line to come to Canada through this channel. (18)
Why, therefore, should we give preference to those who have the
resources to pay human smugglers in order to jump this queue? It can
hardly be argued that coming to Canada constitutes their only chance to
escape persecution when most of them could have sought asylum in
countries much easier to reach.

Our System Is Extremely Costly and Unfair to Refugees Overseas

The current system is inequitable to those in need of protection in
other ways as well. The cost to Canadians taxpayers of failed claimants
alone is estimated to be in excess of $1 billion a year--or $50,000
each. (19) At the same time, however, Canada contributed only $45
million in 2009 to the UNHCR for the protection and assistance of the
ten million refugees under its care overseas--which amounts to about $4
each. Surely our priorities are skewed when this is allowed to happen.

A further possibility that should be considered to bring more order
to the system is the imposition of an annual ceiling on how many
refugees we accept each year. Originally, we operated on an ad hoc
basis; we accepted people as a particular crisis developed overseas--as
was the case with the Hungarians, the Czechs, and subsequent refugee
movements. In order, presumably, to accommodate the planning of
non-governmental organizations assisting in the resettlement of
refugees, we established annual targets.

We Need to Establish an Annual Limit on the Number of Refugees
Accepted in Canada

We now, however, also have large flows of self-selected refugee
claimants arriving in Canada (a situation we did hOt anticipate in
earlier days) in addition to both annual targets for resettlement and,
on occasion, ad hoc responses to particular situations overseas--such as
out agreement to accept 5,000 refugees from Bhutan in 2007. In the
circumstances, it would make sense to establish annual limits for the
combined totals entering through al1 of these channels. Canada is, after
all, one of the most generous countries in the world when it comes to
the acceptance of refugees from overseas and, in order to maintain
public confidence in the system, we should deal with overall numbers in
a more orderly fashion.

Australia, by way of example, establishes the number of refugees it
will take each year and this includes those resettled from overseas as
well as those accepted who have made claims onshore. (20) The Australian
total in recent years has ranged between 13,000 and 14,000. If larger
numbers than expected come in through one channel, they are reduced in
other areas to keep the overall intake within the established limits.

In Canada's case, while there is widespread public support for
taking in a reasonable number of genuine refugees, this would be better
served if the numbers of successful refugee claimants who applied in
Canada were combined with those resettled from abroad to produce an
annual total.

Conclusions

Changing the way in which Canada deals with people who arrive on
out territory and make refugee claims is both complicated and
controversial and there is clearly a lack of public confidence in the
present system. It is open to widespread abuse, unfair to genuine
refugees waiting to come to Canada, extremely costly, and constrained by
domestic and international legal obligations that are ill-fitted to
current realities. It is also an area of concern in relation to
protecting and preserving out sovereignty since we currently have
limited control over who enters and remains on out territory if they
claim refugee status.

Correcting the problems related to the refugee determination system
poses an immense challenge to any government given the array of
individuals and oiganizations that oppose virtually every attempt to
reform it that involves restricting access or reducing opportunities for
failed claimants to prolong their stay in Canada. As noted above, some
of the principal impediments to making fundamental improvements to the
system include the 1985 Singh decision based on Section 7 of the Charter
of Rights and Freedoms, the 1951 United Nations Convention relating to
the Status of Refugees, and our failure to establish an adequate list of
safe third countries.

While there remains strong support in Canada for accepting genuine
refugees, it is equally clear that most Canadian believe that the
current system is hot working properly and needs a major overhaul. (21)
The numbers of people attempting to enter Canada by any means available
is only likely to increase in the future. The International Organization
for Migration (IOM) estimates that in 2010 there were 214 million
international migrants and that at the current rate of growth this could
reach 405 million by 2050. (22)

While many of these migrants will be crossing borders legally, in
its report the IOM expresses concern over the emerging patterns of
irregular migration involving inter alia asylum seekers. It states that:

In the circumstances, Canada should put its house in order sooner
rather than later and take steps to ensure that, while continuing to
accept a reasonable number of genuine refugees for resettlement, these
should come essentially from among those who have been selected abroad
and few from the ranks of those who make refugee claims in Canada.

Political parties that fail to recognize this state of affairs can
eventually expect to pay a price in terms of support at the ballot box.

NOTES

(1.) UNHCR, Statistical Yearbook 2008, Table 12.

(2.) Judy Sgro, who was one of the Liberal Government immigration
ministers who refused to implement the RAD, was quoted in July 2004 as
stating that there were already too many appeals available to failed
refugee claimants that enabled them to delay their departure from
Canada; Jim Bronskill, "Refugee Appeals Too Slow, Too Costly, Sgro
Says," Globe and Mail (Toronto), July 27, 2004.

(6.) A Maclean's magazine article reported in 1996 that
"According to records from the consular section of the Sri Lankan
High Commission, more than 8,600 Sri Lankans with refugee claims pending
in Canada applied for travel documents to visit Canada in 1992. The
following year, the figure was 5,865"; see Paul Kaihla, "A
Divided Community," Maclean's, April 29, 1996, 23. More
recently, a government document obtained through access to information
showed that over 70 per cent of successful Tamil refugee claimants
surveyed returned to Sri Lanka for vacations, business, or to sponsor
family members; see Brian Lilley, "Refugees Go Home for
Holidays" Toronto Sun, August 22, 2010, accessed November 16, 2010,
http://www.torontosun.com/news/canada/2010/08/21/
15098916.html?comments_page=14&id=15098916.

(11.) John L. Manion, unpublished letter to Minister of Citizenship
and Immigration Elinor Caplan, August 11, 1999. Manion also spoke about
the impact of the Singh decision on the refugee determination system
when he testified before Standing Senate Committee on Social Affairs,
Science and Technology on October 3, 2002.

(13.) The term "sale third country" refers to a country
that an asylum seeker has passed through and where they could have made
a claim but chose instead to continue their journey in order to seek
asylum somewhere else.

(14.) Bissett, "Abusing Canada's Generosity," 20,
21.

(15.) Refugee activists argue that US asylum provisions are less
generous than Canadian on the basis that their acceptance rates are
lower and for various other reasons. Prior to the inception of the STCA,
however, it was more common for Canadian activists to claim that our
provisions were tougher than those of the United States in an effort to
rebut those who claimed that Canada was too soft on refugee claimants.
Because the two systems differ in many respects, it is not difficult to
find points that support both arguments if one chooses to be selective.

(21.) A survey carried out by Harris/Decima round that 84 per cent
of Canadians agree that the Government should take steps to reform the
refugee determination system; see Citizenship and Immigration Canada,
Refugee Omnibus Report September 2009 Executive Summary, 6.

Martin Collacott served as arnbassador of Canada to countries in
Asia and the Middle East. He has written and spoken extensively on
issues related to the refugee determination systern and is currently a
senior fellow at the Fraser Institute and spokesperson for the Centre
for Immigration Policy Reform.

Current and future challenges of irregular migration result
not only from increasing numbers. Irregular migration is also
becoming more complex, not just because of the variety of routes
into irregularity, but also because of the difficulties in
distinguishing the particular needs and rights of various types
of persons forming part of irregular migration flows--for example,
asylumseekers or unaccompanied minors ... Fundamentally,
irregular migration should be curbed because it undermines the
rule of law and exerts a heavy human toll on the migrants
themselves. When destination countries tolerate high levels of
irregular migration, they undermine their own legal immigration
systems. There is little credibility for immigration law if
migrants and migrant smugglers and human traffickers are allowed
to circumvent the policies in place to determine who enters, for
what purposes, and for what period of time. Irregular migration
also undermines public support for immigration. Often, the public
reacts negatively to migration because it feels that the government
no longer has control over who is to be admitted. High levels of
irregular migration can thus create a backlash that extends to
legal immigration as well. (23)